FINDINGS AND RECOMMENDATIONS
Anderson, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue are his 2007 convictions in the Sacramento County Superior Court, case number 06F02395, for which he is serving an aggregate sentence of 26 years and four months in state prison.
During a 48-hour crime spree, Anderson and his co-defendants, David Bustamante and Christian Rangel, robbed multiple victims at three different locations. Miguel Rangel, (Christian Rangel's brother) was additionally involved in one of the robberies; he pleaded no contest and his case was severed. Christian Rangel was tried separately. At the joint trial of Anderson and Bustamante, evidence was adduced as follows:
At approximately 10:00 p.m. on March 16, 2006,FN3 Ronald Wu went to use the Wells Fargo ATM located at Howe and University Avenue in Sacramento. As he stood in front of the machine, Wu heard someone approach and turned to see a gunman (later identified as Rangel's brother), pointing a gun at him. Rangel followed his brother to the ATM while Anderson (the driver) waited in the car. As Wu fumbled through his wallet, Rangel's brother said, "Get it now. I will shoot you. I will kill you now." Rangel said, "This guy is too slow. Shoot him now. We need to go." Rangel's brother then struck Wu in the back of his head. Wu finally managed to withdraw $200 from the ATM and handed it over to the robbers, along with his driver's license. Rangel's brother threatened to kill Wu and his family if he called the police or canceled the ATM card. Rangel and his brother then got into the car driven by Anderson, who was waiting for them in the parking lot, and drove off.
FN3. All further calendar references are to the year 2006. Six days after the robbery, Sacramento City Police Detective Sheila Bergquist interviewed Anderson in jail. After waiving his MirandaFN4 rights, Anderson stated that around 10:00 p.m. on March 16, he picked up two of his friends in his mother's 1991 gray Acura Legend and drove them to a Wells Fargo ATM on Howe and University Avenue. He saw both friends go up to a man using the ATM, knew that some "criminal activity" had occurred, and drove away with them. Anderson identified Rangel and his brother from surveillance photos as the friends he had picked up.
FN4. Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. [March 17] St. Patrick's Day robbery The night after the Wu robbery, March 17 at around 11:00 p.m., Pete Timm, Matthew Gray, Jonathan Flores, and Cory Thomas drove to a Wells Fargo ATM machine near the intersection of Howe and Fair Oaks. Timm and Gray went up to the ATM, while Flores and Thomas stayed in the car. While using the machine, Timm noticed three males walk up behind him, two of whom were later identified as Bustamante and Rangel. After Timm and Gray had both used the ATM machine, they began to walk back to Flores's car. Before they could get in the car, Rangel pulled out a gun and pointed it at Timm's chest, saying, "Give me your shit." He also held the gun to the heads of Flores and Thomas, threatening to kill Thomas. All the victims handed over their wallets and cash. The robbers escaped in a gray Acura Legend with paper-covered dealer license plates.
Sacramento County Sheriff's Deputies Matthew Burton and Duncan Brown responded to a 911 call about the robbery and interviewed the victims.
March 18 house robbery A few hours later, at approximately 1:00 a.m., three males, later identified as Anderson, Bustamante, and Rangel, and a female arrived uninvited to a party at David Fink's house. Bustamante grabbed Fink's laptop computer and cords from the living room, and tried to punch Fink when Fink confronted him. Rangel pulled out a gun and pointed it at Fink and other party guests. Bustamante and Anderson grabbed two Samurai swords from a display mantle as the group left the house. Fink called the police, who arrived around 2:00 a.m. to take a report.
Apprehension of the robbers Around 4:00 a.m. that morning (March 18), Deputy Brown stopped a gray Acura Legend with paper-covered license plates that matched the description of the car given to him by the victims of the St. Patrick's Day robbery. Anderson was driving the car with Bustamante, Rangel, and a female as passengers. After determining that Anderson was on probation, the deputy conducted a search of the car and found a laptop computer, two Samurai swords in sheaths, and an empty wallet, identified later as some of the items stolen from victim Fink's house a few hours earlier. The deputy also found cash in Anderson's possession that was similar in denominations to the money Thomas reported giving to the robbers on March 17.
People v. Anderson, No. 2623972, 2008 WL 2623973, at 1 -2 (Cal. App. 3rd Dist. 2008).
On this evidence, a jury convicted Anderson of four counts of first degree robbery and two counts of second degree robbery. The trial court sentenced him to an aggregate state prison term of 26 years and four months.
Anderson appealed his convictions to the California Court of Appeal, Third District, where judgment was affirmed in an unpublished opinion. Petition for review to the California Supreme Court was denied. Anderson filed multiple state habeas corpus petitions which were likewise denied. The parties agree that Anderson exhausted state remedies with respect to grounds one through six; respondent asserts, however, that ground seven is unexhausted and therefore barred in this court. Respondent additionally asserts that ground four is procedurally barred for Anderson's failure to object to the alleged constitutional violation at trial.
A. Insufficient evidence supported his conviction for the Wu robbery under a theory of aiding and abetting;
B. Insufficient evidence supported conviction for the St. Patrick's day robbery;
C. The trial court erred in instructing with CALCRIM No. 1603;
D. The prosecutor committed prejudicial misconduct;
E. The trial court erred in imposing consecutive sentences based on facts not found true by a jury beyond a reasonable doubt;
F. Both trial and appellate counsel rendered ineffective assistance; and
G. The trial court erred in declining to instruct the jury with proposed Defense Special Instruction No. 1.
For the reasons that follow, the grounds are without merit and relief should be denied.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
This court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
A. Sufficiency of the Evidence- Wu Robbery
Anderson claims there was insufficient evidence that he aided and abetted the March 16 robbery of Ronald Wu. He points out that he did not appear in any of the surveillance photographs, that he was not identified by Wu as having been present at the scene of the crime, and that Wu did not accurately describe the car he was subsequently stopped driving.
The Due Process Clause of the Fourteenth Amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364 (1970). On habeas corpus review, sufficient evidence supports a conviction so long as, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Prantil v. California, 843 F.2d 314, 316 (9th Cir. 1988) (per curiam).
The Jackson standard is applied "with explicit reference to the substantive elements of the criminal offense as defined by state law." Davis v. Woodford, 384 F.3d 628, 639 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 319.) The dispositive question is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. ...